Requirement for our prior approval for certain ABWOR cases: tests applied

As a pre-condition, our prior approval is required when providing ABWOR in certain proceedings – regulation 13 of the Advice and Assistance (ABWOR)(Scotland) Regulations 2003.

We are prepared to reconsider any refusal if you can provide further information.

ABWOR requiring prior approval - factors you should address

You must obtain our prior approval to provide ABWOR for proceedings before the Employment Tribunal, First Tier Tribunal for Scotland, First-tier Tribunal and the Upper Tribunal, with the exception of immigration and asylum proceedings before either Tribunal.  The tests are either an effective participation test or an interests of justice test.

Effective Participation

When assessing the effective participation test we need to be satisfied that the tribunal deciding the case will do so sitting in Scotland and:

  • The case is arguable
  • It is reasonable in the particular circumstances of the case that assistance by way of representation be made available
  • The case is too complex to allow your client to present it to a minimum standard of effectiveness in person.

The factors we have to take into account in considering whether the case is too complex include:

  • Whether the determination of the issue may involve procedural difficulty or consideration of a substantial question of law, or of evidence of a complex or difficulty nature
  • Whether your client may be unable to understand the proceedings or to state their own case because of age, inadequate knowledge of English, mental illness or mental/physical disability.

Interests of Justice

When assessing the interests of justice test we need to be satisfied that the tribunal deciding the case will do so sitting in Scotland; and

In all the circumstances of the case it is:

  • In the interests of justice
  • Reasonable that advice and assistance by way of representation is made available.

The factors to be taken into account in determining whether the interests of justice test is met include:

  • Whether he determination if the issue may involve procedural difficulty or consideration of a substantial question of law, or of evidence of a complex or difficulty nature
  • Whether your client may be unable to understand the proceedings or to state their own case because of age, inadequate knowledge of English, mental illness or mental/physical disability.

We may take other additional factors into account. In any request for approval, you should address these issues in appropriate detail

ABWOR special case: recovery proceedings for criminal cases

Recovery proceedings means proceedings relating to an application for the recovery of documents, in connection with criminal proceedings, in which:

  • The documents sought include medical or other sensitive documents relating to your client
  • The application has been intimated to the client
  • Your client wishes to oppose recovery of documents on the basis that the granting of the order would infringe their rights under Article 8 of the European Convention of Human Rights

Special provisions: aid type, registration, and financial eligibility

Although the ABWOR available is criminal ABWOR, there is a special provision if you are registered to provide criminal, civil or children’s legal assistance. You may undertake the work if your client approaches you seeking to oppose the order and the above circumstances apply.

Additionally, if you are not on these registers you can still do this work, and should contact us to obtain authorisation to provide ABWOR in these cases.

In cases where you intend to provide representation, you should make an ABWOR application and select the ORD category. No financial details will be required. You will simply need to answer the effective participation questions.

Prior approval required: factors you should address

There is no financial eligibility test and no liability for a contribution from your client, but you must obtain our prior approval before providing ABWOR. In considering whether to grant approval we are required to apply an effective participation test, to satisfy us that:

  • The case is arguable
  • It is reasonable that assistance by way of representation be made available
  • The case is too complex to allow your client to present it to a minimum standard of effectiveness in person.

The factors to be taken into account in determining this include:

  • Whether the issue may involve procedural difficulty or consideration of a substantial question of law, or evidence of a complex or difficulty nature
  • Whether your client is able to understand the proceedings or to state their own case because of age, inadequate knowledge of English, mental illness or mental/physical disability.

Availability of advice and assistance where ABWOR is not approved

If for any reason ABWOR is not available in terms of the above arrangements or the application is refused, standard advice and assistance may still be made available to your client if they are financially eligible.

In these circumstances, your client would be need to be assessed for financial eligibility on the standard basis, and may similarly be liable for a contribution.

Again, ORD should be used in all applications for recovery proceedings.

Initial limit of authorised expenditure for these cases

Where it has been determined that your client could not be expected to participate effectively in the proceedings without representation, ABWOR for recovery proceedings is subject to an initial limit of expenditure £150.00.

Advice and assistance for recovery proceedings would be subject to an initial limit of £35.00.

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